Appeal from the Circuit Court of Cook County. No. 91 CH 10978. Honorable Thomas P. Durkin, Judge Presiding.
Released for Publication May 12, 1997.
The Honorable Justice Gallagher delivered the opinion of the court. Buckley, J. and O'brien, J. concur.
The opinion of the court was delivered by: Gallagher
JUSTICE GALLAGHER delivered the opinion of the court:
Plaintiff Kenneth Antonelli appeals from the judgment of the circuit court affirming an administrative order of the Board of Trustees of the Hillside Police Pension Board (board) revoking his disability pension. He contends that the board's termination of his benefits was against the manifest weight of the evidence.
Plaintiff, a police officer with the Hillside Police Department, was granted a duty-related disability pension in March 1981. At a hearing before the board in August 1991 plaintiff appeared without counsel and acknowledged that he had not submitted the most recent required annual medical report. Plaintiff stated that he had degenerative disk disease and was still experiencing lower back pain for which he now took Tylenol or Motrin. He played no sports and worked part-time from his home preparing Medicare and supplemental insurance forms for senior citizens. The hearing was continued to permit plaintiff to visit his own physician and provide the board with medical documentation to support his claim.
At the time the board had before it reports by two physicians who had examined plaintiff. In a March 1990 report by Dr. John Dwyer, plaintiff was given no restrictions for sitting, standing, walking or motor vehicle operation. He was restricted from bending, stooping or squatting repetitively and restricted from lifting more than 20 pounds with "occasional" lifting up to 45 pounds. Dr. Dwyer recommended that plaintiff be assigned to "light duty" which could be modified upward as plaintiff's weight tolerance improved. The doctor's report was based upon a low back evaluation by a physical therapist.
The board also had a May 1990 report by Dr. David Spencer who stated that plaintiff's x-rays were normal and that plaintiff did not report significant pain or disability. Plaintiff had refused to have a lumbar CT scan, which the doctor had recommended because there had been no diagnostic tests for three years. In a follow-up report at the end of August 1991, Dr. Spencer reported that plaintiff was not disabled to perform the duties of a policeman, and he prescribed no medication.
In September 1991 plaintiff submitted a report by Dr. William Dobozi who stated that plaintiff reported "more pain in his lower back and recurrence of his sciatic pain into his left leg and left foot" and that the pain was worse than previously experienced. According to Dr. Dobozi, plaintiff's sciatic type symptoms prevented him from doing heavy work or police work, and no change in plaintiff's condition warranted his return to work.
On October 16, 1991 the board issued its order rescinding plaintiff's disability pension. It found that plaintiff had failed to produce any evidence to support his continuing disability. It acknowledged Dr. Dobozi's report but stated that Dr. Dobozi had relied solely upon plaintiff's subjective complaints of pain. Plaintiff then filed a complaint requesting administrative review.
After a hearing, the circuit court remanded the case to the board for further administrative proceedings to allow introduction of additional evidence and retained jurisdiction over the case.
Plaintiff was again examined by the board's physicians and permitted to take their evidence depositions. He also visited Dr. Dobozi several times, and Dr. Dobozi's evidence deposition is part of the record. The report of Dr. Ronald Cheff, who examined plaintiff on October 25, 1991, is also included in the record. Dr. Cheff reported that plaintiff complained of persistent pain down his leg and pain to the left lumbar region. In his opinion plaintiff suffered from an L4-L5 root lesion on the left side. His report was supported by an EMG study.
When Dr. Dobozi examined plaintiff in February 1993, plaintiff still continued to complain of lower back pain radiating into his left leg, and plaintiff stated that any activity increased the pain. The doctor confirmed that the 1991 EMG showed a nerve root lesion which was the same as that shown in the 1981 EMG. In Dr. Dobozi's opinion, plaintiff was not able to return to his duties as a policeman. Dr. Dobozi's examination of plaintiff on January 18, 1994, which was supported by current x-rays, was essentially the same.
In his deposition on March 10, 1994, Dr. Dobozi explained that plaintiff probably had a bulging disk that pressed on his sciatic nerve producing pain down his leg. The disk was not herniated. Dr. Dobozi also believed that plaintiff suffered from lumbosacral radiculitis, an inflammation of the nerve root which referred pain into the leg, and radiculopathy, weakness in the muscles supplied by the damaged nerves. In Dr. Dobozi's opinion, plaintiff could forego surgery as long as he performed only light activities, such as desk work. Surgery was no guarantee that his pain would be alleviated and physical therapy was temporary and not curative. In Dr. Dobozi's ...